31 March 2011

SlutWalk Toronto is going to take place on 03 April. Yes, you read that right, there is going to be a slutwalk in Toronto. What's more, the organizers want to unite with their allies during the slutwalk. Honest. I have proof from their site:

You might ask, what in the ever-loving-world is that all about? Well, I'll tell you.

A little while back an officer went to a law school in Toronto and said that although women are not responsible for the behavior of men who commit sexual assaults against them, those women who are concerned can take steps of their own and act in a risk averse fashion. It was the equivalent of the officer saying that while a home owner is not responsible if his house is burglarized, the owner should not walk around the local WonderMart having a conversation with his wife about how they never lock any doors or windows on their mcMansion. He may want to have that conversation, he has the right to have that conversation, and he is not legally responsible if someone who overhears that conversation burglarizes his house. However, if he is risk averse he might choose not to have the conversation.

So, how did the officer get in trouble? He did not use PC speak and he did not recognize the absolute necessity that every citizen who is acting in a legal manner must not be cautioned that his/her behavior, while legal, may expose that person to danger. He also didn't seem to realize that he was in a place which had at least a fairly liberal atmosphere.

He said that one way for women to avoid sexual assault is to not dress like sluts. The answer is simply too blunt and too likely to stir up emotions. The officer's already been disciplined for being truthful - hopefully the only thing his superiors made him do is learn PC-speak so that the next time he speaks truth he won't use emotionally powerful words to say it.

21 March 2011

I'm preparing for a symposium at the University of District of Columbia School of Law. The title of the symposium "Life After the War on Drugs" (scroll down the page to get the info). It will be interesting because I'm sure that I'll be exposed to a much different perspective than I'd run into in Virginia.

Anyway, it's my hope that this is the harbinger of the death of the analogy "War on Drugs." I hate this comparison. Wars are eventually won or lost. Wars involve the invasion of, and holding territory. Wars threaten the actual destruction of the countries involved. The interdiction of illegal drugs is a policing action.

Policing never ends. Of course, where the line is drawn for policing is a policy / morality / philosophy decision. However, the enforcement of that line is an ongoing matter.

Drug abuse has been around for a long time. It will be around for a long time. Alcohol and opium have been around for a looooooong time. Distilled (more powerful) alcohol has been around since sometime around 2k B.C. Distilled heroin and cocaine have been around since the 1800's. Anti-drug enforcement goes back to at least the 7th century (Quran bans alcohol and hashish). U.S. enforcement goes back to 1875 when San Francisco tried to ban opium dens.

Unless we just walk away from drug enforcement, adopt a "let 'em die in the streets" attitude, and let legal pharmaceutical companies flood the streets (and crowd the current illegal dealers out), we are going to be trying to find ways to stop abuse for all time. Police interdiction will remain a significant part of these efforts. Let's name it for what it is and stop calling a permanent effort a "war."

14 March 2011

Four sheriff's deputies were ambushed yesterday in Buchanan County, Virginia. Responding to a larceny in progress, Deputy William Ezra Stiltner and Deputy Cameron Neil Justus were killed by a sniper hidden in the woods on a mountain. As law enforcement converged on the scene and began searching for the shooter, Deputy Shane Earl Charles & Deputy Wayne Rasnake were shot and seriously injured by the sniper. Both remain in critical condition.

May God bless all these men and look after the two deputies still struggling for their lives.

I'm in the middle of prepping for a couple things right now. In the next couple weeks, I'm going to go to DC and talk about the devastation and dynamics of pill abuse and then turn around and come right back so that I can give a two hour presentation on all the criminal cases which have come down from the Virginia appellate courts and those cases relevant from the 4th Circuit and federal supreme court (for the local Bar's CLE). I spent the weekend prepping up the CLE stuff so that I could turn it in and have it sent out to all the attendees on a thumb drive. The stuff for the symposium at the law school in DC is still ongoing because of the current insanity that is ongoing in Florida (the governor is trying to kill anti-pill mill activities).

Anyway, in anticipation of the CLE, I've been breaking down the new criminal law cases every month. As you might expect, that means there are a few cases where I jotted down the major rule of the case and have spent no time thinking about the case for several months thereafter. For one in particular, I looked at the note I had taken and was stumped:

Mohamed v. Commonwealth, APR10, VaApp No. 1078-09-4: Although subject matter jurisdiction can be raised at any time, the judge's authority to exercise his subject matter jurisdiction must be raised at trial or it is waived.

I sat there, looking at this and could not, for the life of me, figure out how a judge could have subject matter jurisdiction, but not have the power to exercise it. In my defense, it was getting late and my synapses weren't all firing, but I can still usually figure these things out with a couple minutes thought. Nope, gonna hafta look this one up.

Ah, it's a probation violation case. The court did something after the defendant's probation was over to punish the probationer for something he did while under probation. Hence, the court had subject matter jurisdiction to handle probation violations. However, the appellate court is kind enough to explain to us that the ability to exercise jurisdiction is a totally separate kind of jurisdiction in and of itself. Thus, the defendant could object that the trial court had no subject matter jurisdiction and be wrong because the court has that jurisdiction. However, the failure to object to the “authority to use” jurisdiction waives it.

Wow, that's a mighty thin hair to split. One might even say that inherent in any jurisdictional ability of a court is the authority to use it and that challenging that authority ipso facto is a challenge of the jurisdiction. I think the court's reasoning goes like this:

Subject Matter = Jurisdiction

Authority to Use = Jurisdiction +

It's like splitting can and may. Can is the original jurisdiction. I “can” go to the office next door and punch the guy who works there (and run like heck). I “may” not go over and punch him (silly anti-battery laws). May includes can. If I can't do it whether I may is irrelevant. If I have no cake and someone grants me the right to eat cake it's cruel and may end badly for the grantor, but I still can't eat cake.

Mind you, any jurisdiction still includes within it the authority to exercise the jurisdiction. I think that this kind of analysis could only be used when there is an intervening factor (ending of probationary time) that could end the ability of the court to exercise its power. Perhaps the court would have been better off making the distinction between general subject matter jurisdiction and the trial court's personal jurisdiction over a probationer.

Good day, be well informed that your ATM card valued at US$2.5Million has been approved, kindly contact Dr. Barry Brown immediately with the below contact details and also reconfirm your personal information to him so that he can proceed with the delivery of your ATM Card.

11 March 2011

I signed on to do criminal law stuff when I joined a Commonwealth Attorney's office. However, while I was reading a recent decision by the Virginia Supreme Court - Kozmina v. Commonwealth, MAR11, VaSC No. 092395 (deciding that Commonwealth Attorneys can prosecute civil cases of refusing to submit to breath or blood tests) - I tripped over a footnote in which Justice Lemons was kind enough to list civil things that the General Assembly has entrusted to local Commonwealth Attorneys:

2.2-3126(B) - conflict of interest opinions

3.2-3947(B) - enjoining pesticide violations

3.2-4505(2) - apple injunctions

3.2-4749 - farm produce injunctions

8.01-622.1(B) - enjoining assisted suicide

8.01-637(A) - instituting actions in quo warranto

10.1-1320.1 - seeking fines and penalties for Air Pollution Control Board

18.2-245(b) - enjoining continuing sales frauds in addition to any available criminal sanctions

08 March 2011

An interesting part of Michigan v. Bryant is the hostility which bleeds through the decision to the decoupling of the hearsay exceptions from the confrontation clause. There is a hint that the dying declaration will be allowed under confrontation. We are also told “there may be other circumstances, aside from ongoing emergencies, when a statement is not procured with a primary purpose of creating an out-of-court substitute for trial testimony” and that “in making the primary purpose determination, standard rules of hearsay, designed to identify some statements as reliable, will be relevant.” As I read this, it is an invitation to go back to business as usual and recouple many of the hearsay exceptions to the confrontation clause.

Let's look at some of the major hearsay exceptions' primary purpose:

Excited Utterance - To express an emotional reaction.

The excited utterance almost has no purpose at all. It need not be, and often is not, in reaction to question. There seems to be no reason this would not pass the PPT.

Business Records / Shopkeep - To maintain a business.

The business record exception may even be more apt for the PPT than the emergency exception. Business records are kept without thought of any criminal prosecution. This is an exception I would expect to see litigated fairly quickly because there are all sorts of embezzlement and larceny charges wherein the books show the crime, but the actual individuals involved (cashiers, secretaries, managers) have moved on to other jobs in other places and can't be found.

State of Mind - To state an individual's current thoughts.

This could be a little more chancy. If someone blurts something out in reaction to a conversation with an officer it could fail the PPT. If it's someone in the middle of a robbery telling his co-offender that he wants to shoot the store manager it could pass.

Dying Declaration - To identify the killer.

The dying declaration is the one least likely to pass the PPT and it seems that it will get a pass solely because it is an old exception that found its trustworthiness in the belief that a man would not want to depart to face God with his last mortal act being the sin of false witness.

Michigan v. Bryant has pried open a can of worms. Now we get to spend the next several years litigating which of the hearsay exceptions are going to transfer to the confrontation clause and which are not.

The General Assembly has relented and decided to allow us (at least some of us) to have judges again. As of 01 July 2011 we in the 30th will get a new judge. Whoever you are, be assured that we will laugh at your jokes (one of the perks of being a judge). As for our current judges, hang on until July and you'll have enough time for some of the small luxuries again (like sleep).

The most difficult part of a trial court's job in the future may well be deciding exactly when an interrogation at an emergency scene morphs from non-testimonial to testimonial. After all, a competent officer faced with a dying victim is only doing his job when he tries to find out information which could lead to the capture and conviction of the murderer.

Certain questions are going to be obvious when an officer arrives at the scene and someone is shot, knifed, beaten, etc. Who did it? Where is the person who did it? When did it happen? These are the minimal questions that an officer will ask that should always pass constitutional muster. The officer must secure the scene to protect, the victim, himself, civilians, and other emergency responders (like EMT's). The bare minimum knowledge is the location of the dangerous person, if the activity is close enough in time to be ongoing and a way to identify the attacker. Next come the questions in the gray area. What happened? Why? These are going to be fertile grounds for millions of arguments across the U.S. between prosecutors and defense counsel. How an attack happened (up close and personal v. at sniper range) can be very important in determining how the officer will react to the emergency. The trick for judges will be determining how far the officers can go in this direction before it crosses the line. After all, when the victim tells an officer that he saw the attacker take the pistol out of his grandmother's cookie jar before shooting the victim, it's going to be a stretch to say that the statement is dealing with the emergency. The why question/answer may be the hardest to justify allowing into court. It may be useful to know that the attacker stabbed the victim because she found out he was cheating on her. It may indicate that the attacker is not interested in hurting others. However, in dealing with a potential ongoing emergency situation, the officer will still have to treat her as though she is a danger to herself and others. Therefore, the why question strikes me as the most unlikely to be admitted to court.

Of course, it will never be quite so easy as distinct questions/answers: who where, when, what and why. The questions will be intermixed and answers will be even more intermixed than the questions. Of course, in Virginia our Court of Appeals has already ruled that dying declarations are non-testimonial, so the majority of the cases involving this sort of thing will sail through Virginia trial courts.

07 March 2011

In its recent Michigan v. Bryant, the US Supreme Court added to its rather new jurisprudence on the Confrontation Clause and the developing “primary purpose” exception. Now, to be honest, the Supreme Court doesn't characterize this as an exception, but that's really a bit of legal sophistry. Here's the language from the 6th Amendment's right to confront an accuser:

In all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him

That's pretty unambiguous. If there's an accuser the accuser must be confrontable. Of course, every bit of evidence the prosecution offers is accusatory; if it wasn't it wouldn't be relevant. Therefore, any statement offered is covered by this constitutional mandate.

However, the constitutional mandate has never been strictly enforced. For a long time trial courts operated under the aegis of a US Supreme Court ruling which allowed statements in if they were sufficiently trustworthy to be slotted into one of the approximately gazillion exceptions to the hearsay rule. Effectively, this rendered the confrontation clause meaningless. Only the State rules of evidence mattered. Interestingly, that meant that constitutional interpretation under this strain of thought could mean that introduction of a statement was constitutional in one State and unconstitutional in another because of differences in evidentiary rules. For example, Virginia still recognizes the common law res gestae hearsay exception and other States have adopted versions of the federal rules of evidence and therefore do not have this exception; thus the constitution meant something different in Virginia.

In any event, in 2004 the US Supreme Court, under the lead of Justice Scalia, declared that the confrontation clause actually stood for the proposition that the defendant had a right to be confronted by his accusers in court. As Scalia is wont to do, he took the court in the direction of an absolutist interpretation. Confrontation means confrontation and all this trustworthiness under the hearsay exceptions was never written into the Constitution; therefore, the test isn't whether a statement is trustworthy, but only where it was spoken (in an adversary hearing with the ability to cross examine).

As you might imagine, this caused a great deal of rending of garments and gnashing of teeth among prosecutors; they immediately set out to counter this terrible, world-ending precedent. As well, there were great cries of joy from members of the defense bar; they immediately set out to have everything which wasn't actually nailed to the floor of the courtroom declared testimony. Trial and lower appellate courts did as they often do when faced with gawdawfully difficult opinions from the Supreme Court which might allow rapists, murderers, and drug users to walk free, they did their level best to ignore it for one legal reason or another.

Out of all this bubbled up the Primary Purpose Test. To understand the reasoning behind the PPT you must accept a certain first principal: Not all statements admitted as evidence are testimonial. Yes, yes, I know. Testimony is the making of statements during a trial or proceeding. However, we're not dealing with reality here, we're dealing with precedent from appellate courts and they have declared that while testimony is a distinct subset of statements, not all statements introduced into evidence are testimony. Having decided this, the courts next had to decide what rule could be used to sort the between testimonial and non-testimonial statements. Thus was born the PPT.

The PPT rule is fairly easy in concept. If a statement was made with the intent of leading to prosecution it is testimony. Of course, quite often statements are made with more than one purpose. Therefore, the judge must divine what the primary purpose of the statement was when made. The most likely non-testimonial statement is going to be a statement meant to lead to the handling of an ongoing emergency.

In other words, if the primary purpose of a statement was not meant to lead to, or aid in, prosecution it can be introduced into trial without the person who made the statement being present in court to be cross-examined.

Of course, whiles the rule is simple in its stating, it is not likely to be the most simple in its application. As well, the fact that a statement passes constitutional muster technically doesn't get it past evidentiary hearsay rules.

(1) Statements made when questioned by police are non-testimonial when circumstances objectively indicate that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency. (2) The relevant inquiry is not the subjective or actual purpose of the individuals involved in a particular encounter, but rather the objective purpose that reasonable participants would have had, as ascertained from the individuals’ statements and actions and the circumstances in which the encounter occurred. (3) That the threat has ended for the victim does not mean the threat has ended for police and others. (4) The medical condition of the victim is important to the primary purpose inquiry (a) to the extent that it sheds light on the ability of the victim to have any purpose at all in responding to police questions and (b) on the likelihood that any purpose formed would necessarily be a testimonial one. (5) The victim’s medical state provides important context for first responders to judge the existence and magnitude of a continuing threat to the victim, themselves, and the public. (6) A conversation which is non-testimonial because of an emergency situation can evolve into a testimonial conversation. (7) Trial courts will exclude those portions of statement which are testimonial. (8) The statements and actions of both (a) the declarant and (b) interrogators provide objective evidence of the primary purpose of the interrogation. (9) A statement is not testimonial merely because an emergency exists. (10) The primary purpose of an interrogation during an emergency must have been to deal with the emergency in order for the answer to not be testimonial. (11) The Court expressly states that, while it may have hinted that dying declarations are non-testimonial, it does not address that issue in this case. (12) There may be other circumstances, aside from ongoing emergencies, when a statement is not procured with a primary purpose of creating an out-of-court substitute for trial testimony.

16) Tennessee is considering making following the Shariah illegal. This is of concern to me as a person who belongs to a faith which has its own fully developed set of canons. Of course, were the Tennessee legislature to consider moving against the Catholic Church, we might close down all bingo at the church halls around the State, so we're probably safe for now.

Disclaimer

In case anyone out there needs this warning: This ain't legal advice. Everything in the blog is off the cuff and no one goes back and reads all the cases and statutes before blogging. The law may have changed; cases misread and misunderstood two years ago can still lead to a clinging misperception. Courts in your county, city, or State probably don't operate as described herein. Feel free to be inspired, but YOU MUST ALWAYS DO YOUR OWN RESEARCH OR HIRE A COMPETENT ATTORNEY TO DO SO because I haven't.